38920 Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 

participate in this rulemaking effort by 

submitting written comments on the 

proposal to the FAA, none were 

received. 

Class E5 airspace designations are 

published in paragraph 6005 of FAA 

Order 7400.11E, dated July 21, 2020, 

and effective September 15, 2020, which 

is incorporated by reference in 14 CFR 

71.1. The Class E airspace designation 

listed in this document will be 

published subsequently in the Order. 

Availability and Summary of 

Documents for Incorporation by 

Reference 

This document amends FAA Order 

7400.11E, Airspace Designations and 

Reporting Points, dated July 21, 2020, 

and effective September 15, 2020. FAA 

Order 7400.11E is publicly available as 

listed in the ADDRESSES section of this 

document. FAA Order 7400.11E lists 

Class A, B, C, D, and E airspace areas, 

air traffic service routes, and reporting 

points. 

The Rule 

This amendment to 14 CFR part 71 

establishes Class E airspace, extending 

upward from 700 feet above the surface, 

at Crooked Creek Airport. The Class E 

airspace is established within a 2 mile 

radius of the airport, excluding that area 

within the Stony B Military Operations 

Area, and that airspace within 2 miles 

each side of the 332° bearing extending 

from the 2-mile radius to 8.5 miles 

northwest of the airport. This airspace 

protects aircraft using the RNAV 

approach to runway 14 and departures 

until reaching 1,200 feet AGL. 

FAA Order 7400.11, Airspace 

Designations and Reporting Points, is 

published yearly and effective on 

September 15. 

Regulatory Notices and Analyses 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current, is non-controversial, and 

unlikely to result in adverse or negative 

comments. It, therefore: (1) Is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866; (2) is not a 

‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

The FAA has determined that this 

action qualifies for categorical exclusion 

under the National Environmental 

Policy Act in accordance with FAA 

Order 1050.1F, ‘‘Environmental 

Impacts: Policies and Procedures,’’ 

paragraph 5–6.5a. This airspace action 

is not expected to cause any potentially 

significant environmental impacts, and 

no extraordinary circumstances exist 

that warrant the preparation of an 

environmental assessment. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g), 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order 7400.11E, 

Airspace Designations and Reporting 

Points, dated July 21, 2020, and 

effective September 15, 2020, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

AAL AK E5 Crooked Creek, AK (NEW) 

Crooked Creek Airport, AK 

(Lat. 61°52′4′′ N, long. 158°8′6′′ W) 

That airspace extending upward from 700 

feet above the surface within a 2-mile radius 

of Crooked Creek Airport, and that airspace 

within 2 miles each side of the 332° bearing 

extending from the 2-mile radius to 8.5 miles 

northwest of the airport excluding that 

airspace within the Stony B MOA. 

Issued in Des Moines, Washington, on July 

15, 2021. 

B.G. Chew, 

Acting Group Manager, Operations Support 

Group, Western Service Center. 

[FR Doc. 2021–15491 Filed 7–22–21; 8:45 am] 

BILLING CODE 4910–13–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Docket No. SSA–2021–0010] 

RIN 0960–AI64 

Flexibility in Evaluating ‘‘Close 

Proximity of Time’’ Due to COVID–19 

Related Barriers to Healthcare 

AGENCY: Social Security Administration. 

ACTION: Temporary final rule with 

request for comments. 

SUMMARY: Since the outset of the 

COVID–19 national public health 

emergency, many individuals have 

experienced barriers that prevent them 

from timely accessing healthcare. In 

response to those barriers, we are 

issuing this rule to temporarily revise 

our requirement in the Listing of 

Impairments (listings) that, for purposes 

of applying several of our 

musculoskeletal disorder listings, all 

relevant medical criteria be present 

simultaneously or ‘‘within a close 

proximity of time,’’ which we define as 

being ‘‘within a consecutive 4-month 

period.’’ While this rule is in effect, we 

will find that the evidence of a 

musculoskeletal disorder is present 

‘‘within a close proximity of time’’ if the 

available evidence establishes such a 

condition within a consecutive 12- 

month period. We expect that this 

temporary change to our rules will 

allow us to make findings of disability 

in appropriate cases in which 

individuals have experienced barriers to 

access to healthcare because of the 

COVID–19 national public health 

emergency. 

DATES: 

Effective date: This temporary final 

rule is effective on July 23, 2021. For 

more information, see SUPPLEMENTARY

INFORMATION. 

Comment date: We invite written 

comments. Comments must be 

submitted on or before September 21, 

2021. 

Expiration date: Unless we extend the 

expiration date by a final rule published 

in the Federal Register, this temporary 

final rule will cease to be effective 6 

months after the effective date of a 

determination by the Secretary of Health 

and Human Services under section 319 

of the Public Health Service Act, 42 

U.S.C. 247d, that the COVID–19 

national public health emergency no 

longer exists. We will publish a 

document in the Federal Register 

announcing the expiration date. For 

more information, see SUPPLEMENTARY

INFORMATION. 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 38921 

1 (https://www.phe.gov/emergency/news/ 

healthactions/phe/Pages/2019-nCoV.aspx). 

2https://www.phe.gov/emergency/news/ 

healthactions/phe/Pages/COVID-19July2021.aspx. 

3 85 FR 78164 (2020). 

4Listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 

1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20D, 

101.22, and 101.23. 

5See 20 CFR appendix 1 to subpart P of part 404 

1.00C7b and 101.00C7b. 

6 Id. 

7 Id. 

8 83 FR 20646, 20647 (May 7, 2018). 

9 85 FR at 78169 n.37 (citing Bavafa, H., Savin, 

S., & Terwiesch, C. (2019). Redesigning Primary 

Care Delivery: Customized Office Revisit Intervals 

and E-Visits. https://dx.doi.org/10.2139/ 

ssrn.2363685. Paper referenced by Bavafa: 

Schectman, G., G. Barnas, P. Laud, L. Cantwell, M. 

Horton, E.J. Zarling. 2005. Prolonging the return 

visit interval in primary care. The American Journal 

of Medicine, 118(4) 393–399.) 

10 85 FR at 78169 n.34 (citing Gore, M., Sadosky, 

A., Stacey, B.R., Tai, K.S., & Leslie, D. (2012). The 

burden of chronic low back pain: Clinical 

comorbidities, treatment patterns, and health care 

costs in usual care settings. Spine, 37(11), E668– 

E677. https://doi.org/10.1097/ 

BRS.0b013e318241e5de.) 

11 85 FR at 78169 n.35 (citing BMUS: The Burden 

of Musculoskeletal Diseases in the United States. In: 

BMUS: The Burden of Musculoskeletal Diseases in 

the United States [internet]. [cited 15 July 2020]. 

https://www.boneandjointburden.org/fourthedition/viiic2/utilization-condition-group.) 

12See 85 FR at 78169 n.36 (citing J Gen Intern 

Med. 1999 Apr; 14(4): 230–235. doi: 10.1046/ 

j.1525–1497.1999.00322.x Lisa M Schwartz, MD, 

MS, Steven Woloshin, MD, MS, John H Wasson, 

MD, Roger A Renfrew, MD, and H Gilbert Welch, 

MD, MPH, Dartmouth Primary Care Cooperative 

Research Network.) 

ADDRESSES: You may submit comments 

by any one of three methods—internet, 

fax, or mail. Do not submit the same 

comments multiple times or by more 

than one method. Regardless of which 

method you choose, please state that 

your comments refer to Docket No. 

SSA–2021–0010 so that we may 

associate your comments with the 

correct rule. 

Caution: You should be careful to 

include in your comments only 

information that you wish to make 

publicly available. We strongly urge you 

not to include in your comments any 

personal information, such as Social 

Security numbers or medical 

information. 

1. Internet: We strongly recommend 

that you submit your comments via the 

internet. Please visit the Federal 

eRulemaking portal at http://

www.regulations.gov. Use the search 

function to find docket number SSA– 

2021–0010. The system will issue a 

tracking number to confirm your 

submission. You will not be able to 

view your comment immediately 

because we must post each comment 

manually. It may take up to a week for 

your comments to be viewable. 

2. Fax: Fax comments to (410) 966– 

2830. 

3. Mail: Mail your comments to the 

Office of Regulations and Reports 

Clearance, Social Security 

Administration, 3100 West High Rise 

Building, 6401 Security Boulevard, 

Baltimore, Maryland 21235–6401. 

Comments are available for public 

viewing on the Federal eRulemaking 

portal at http://www.regulations.gov or 

in person, during regular business 

hours, by arranging with the contact 

person identified in FOR FURTHER

INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Edward Sosar, Office of Regulations and 

Reports Clearance, Social Security 

Administration, 6401 Security 

Boulevard, Baltimore, MD 21235–6401, 

(410) 966–2341. For information on 

eligibility or filing for benefits, call our 

national toll-free number, 1–800–772– 

1213 or TTY 1–800–325–0778, or visit 

our internet site, Social Security Online, 

at http://www.socialsecurity.gov. 

SUPPLEMENTARY INFORMATION: The 

Secretary of Health and Human Services 

issued a determination under section 

319 of the Public Health Service Act on 

January 31, 2020 that a national public 

health emergency exists as of January 

27, 2020 because of the COVID–19 

pandemic.1 The Secretary has renewed 

his determination several times since 

then, most recently on July 19, 2021 

(effective July 20, 2021).2 We are issuing 

this temporary final rule to address the 

ongoing effects of the COVID–19 

national public health emergency. The 

effective date of this temporary final 

rule will help us ensure that we provide 

affected claimants with the benefit of 

the flexibilities offered by this rule. On 

April 1, 2021, we instructed our 

adjudicators to temporarily hold claims 

in which all elements of 

musculoskeletal disorders listings 1.15, 

1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 

101.15, 101.16, 101.17, 101.18, 101.20C, 

101.20D, 101.22, or 101.23 were present 

within a consecutive 12-month period, 

but not within a consecutive 4-month 

period, and it was not possible to 

process a fully favorable determination 

or decision in some other way. By 

holding claims that would benefit from 

the flexibilities in this rule, we will 

process claims affected by this rule on 

or after the effective date of this rule. As 

we explain in more detail below, we 

will continue to apply this rule until 6 

months after effective date of a 

determination by the Secretary of Health 

and Human Services under section 319 

of the Public Health Service Act that the 

national public health emergency 

related to the COVID–19 pandemic no 

longer exists. 

Background 

On December 3, 2020, we published 

the final rule, Revised Medical Criteria 

for Evaluating Musculoskeletal 

Disorders, which became effective on 

April 2, 2021, revising the criteria in the 

listings that we use to evaluate 

disability claims involving 

musculoskeletal disorders in adults and 

children at the third step of our 

sequential evaluation process under 

titles II and XVI of the Social Security 

Act (Act).3 The final rule, among other 

things, revised the listings in response 

to the decision in Radford v. Colvin, 734 

F.3d 288 (4th Cir. 2013). The final rule 

required that, for the purposes of 

applying certain listings,4 all of the 

required medical criteria must be 

present simultaneously, or within a 

close proximity of time, to satisfy the 

level of severity needed to meet the 

listing.5 We defined the phrase ‘‘within 

a close proximity of time’’ to mean ‘‘that 

all of the relevant criteria must appear 

in the medical record within a 

consecutive 4-month period’’ (emphasis 

in original).6 We also provided that 

‘‘[w]hen the criterion is imaging, we 

mean that we could reasonably expect 

the findings on imaging to have been 

present at the date of impairment or 

date of onset.’’ 7

We established the consecutive 4- 

month period as a criterion to meet the 

level of severity in the listings based on 

our extensive research of relevant 

medical literature and clinical 

guidelines. In our notice of proposed 

rulemaking, we also specifically asked 

interested members of the public to 

comment on this issue and provide us 

with any studies and data that 

supported their comments; 8 however, 

no studies or data were submitted. In 

the final rule, we concluded that the 

consecutive 4-month period is 

consistent with instructions providers 

receive for scheduling patients,9 the 

general standard of care,10 and the 

frequency of healthcare visits by 

individuals with musculoskeletal 

conditions.11 At the same time, the 

consecutive 4-month period in the rules 

provides some leeway for the claimant, 

because the standard for patient revisits 

is once every 3 months.12 Our rules 

recognize that one visit alone may not 

ensure all necessary criteria required for 

a medical listing will be appropriately 

documented; however, the consecutive 

4-month time period provides a 

sufficient period to ensure the criteria 

are present within a close proximity of 

time and that the claimant’s 


khammond on DSKJM1Z7X2PROD with RULES
38922 Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 

13 85 FR at 78169 n.38 (citing Veterans Health 

Administration & Department of Defense. (2001). 

VHA/DoD Clinical Practice Guideline for the 

Management of Medically Unexplained Symptoms: 

Chronic Pain and Fatigue. https://

www.healthquality.va.gov/guidelines/MR/mus/ 

mus_fulltext.pdf.) 

14 Id. 

15 85 FR at 78169–70 (citing Veterans Health 

Administration & Department of Defense. (2017). 

VA/DoD Clinical Practice Guideline for Diagnosis 

and Treatment of Low Back Pain. https://

www.healthquality.va.gov/guidelines/Pain/lbp/ 

VADoDLBPCPG092917.pdf.) 

16Centers for Medicare & Medicaid Services 

(CMS) Recommendations: Re-opening Facilities to 

Provide Non-emergent Non-COVID–19 Healthcare 

(https://www.cms.gov/files/document/covidrecommendations-reopening-facilities-provide-nonemergent-care.pdf); see also Non-Emergent, Elective 

Medical Services, and Treatment Recommendations 

(https://www.cms.gov/files/document/cms-nonemergent-elective-medical-recommendations.pdf.) 

17https://www.spine.org/Portals/0/assets/ 

downloads/Publications/NASSInsider/ 

NASSGuidanceDocument040320.pdf. 

18 Delayed Care with Harmful Health 

Consequences—Reported Experiences from 

National Surveys During Coronavirus Disease 2019 

| Infectious Diseases | JAMA Health Forum | JAMA 

Network. See also The Impact of Coronavirus on 

Households Across America (https://

cdn1.sph.harvard.edu/wp-content/uploads/sites/ 

21/2020/09/NPR-RWJF-Harvard-National-Report_

092220_Final1-4.pdf) and COVID–19: Experiences 

Among the Medicare Population (https://

www.cms.gov/files/document/medicare-currentbeneficiary-survey-covid-19-data-snapshot.pdf.) 

19Reduced Access to Care: Household Pulse 

Survey (National Center for Health Statistics) 

(https://www.cdc.gov/nchs/covid19/pulse/reducedaccess-to-care.htm.) 

20https://www.spine.org/Portals/0/assets/ 

downloads/Publications/NASSInsider/ 

NASSGuidanceDocument040320.pdf. 

21COVID–19 Guidelines for Triage of 

Orthopaedic Patients (https://www.facs.org/covid19/clinical-guidance/elective-case/orthopaedics). 

22Navigating the COVID–19 Pandemic (https://

www.aaos.org/globalassets/about/covid-19/aaosclinical-considerations-during-covid-19.pdf). 

23COVID–19 Clinical Guidance for Adult Patients 

with Rheumatic Diseases (https://

www.rheumatology.org/Portals/0/Files/ACRCOVID-19-Clinical-Guidance-Summary-Patientswith-Rheumatic-Diseases.pdf). 

24Tanaka et al. (2020). Telemedicine in the Era 

of COVID–19: The Virtual Orthopaedic 

Examination. The Journal of Bone and Joint 

Surgery, Incorporated, 00:e1 (1–7) http://dx.doi.org/ 

10.2106/JBJS.20.00609. 

25Laskowski, et al. (2020). The Telemedicine 

Musculoskeletal Examination. Mayo Clinic Proc. 

95(8) https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC7395661/. 

26Baus, Shanna, PA–C. Telehealth & Disability 

Items: Veterans Health Administration. 

Presentation to the Standing Committee of the 

National Academies of Science and Medicine 

Health and Medicine Division, on December 1, 

2020. 

musculoskeletal disorder meets the 

requisite severity for the listing. 

Our use of the consecutive 4-month 

proximity of time requirement is also 

consistent with the standard recognized 

by the Veterans Health Administration 

(VHA) and Department of Defense 

(DoD), as set out in their clinical 

practice guidelines.13 For example, the 

VHA and DoD’s Clinical Practice 

Guideline for the Management of 

Medically Unexplained Symptoms: 

Chronic Pain and Fatigue directs initial 

revisits at 2 to 3 week intervals, with 

visits every 3 to 4 months once the 

patient is doing well.14 Similarly, the 

VHA’s and DoD’s Clinical Practice 

Guideline for Diagnosis and Treatment 

of Low Back Pain describes the duration 

of time for intervention, based on a 

systematic review, as requiring a 

minimum follow-up for effectiveness of 

12 weeks and recommends monthly 

reassessment after initiation of therapy 

if low back pain continues and no 

serious specific underlying cause of low 

back pain is found.15

Rationale for This Rule 

As noted above, on January 31, 2020, 

the Secretary of Health and Human 

Services declared COVID–19 a national 

public health emergency. The COVID– 

19 national public health emergency has 

dramatically changed the provision of, 

and access to, healthcare services 

throughout the country. Individuals 

with musculoskeletal impairments who, 

before the national public health 

emergency, would seek and receive 

healthcare at a frequency consistent 

with the standards cited above, now 

might be unable or choose not to seek 

care in the same manner and frequency. 

This is due in part to healthcare 

organizations and government agencies 

such as the Centers for Medicare & 

Medicaid Services (CMS) 16 prioritizing 

the most urgent services and 

encouraging patients to delay other 

procedures during the pandemic. For 

example, the North American Spine 

Society (NASS) provided guidance for 

delaying non-emergent procedures for 

people with chronic spinal 

conditions.17

Likewise, many individuals have 

delayed or deferred important treatment 

due to closures of medical offices, fears 

of contracting COVID–19 infection 

(including having a high risk individual 

in the household), and other challenges 

created or exacerbated by the pandemic, 

such as difficulty accessing 

transportation. According to one source, 

among the general U.S. population 

reporting delayed care for serious 

problems during the pandemic, 69% 

cited nonfinancial access barriers, such 

as being unable to get an appointment, 

find a physician who would see them, 

or access the care location.18

Additionally, the National Center for 

Health Statistics estimated that 41% of 

U.S. adults had delayed or avoided 

medical care, including urgent or 

emergency care (12%) and routine care 

(32%) because of concerns about 

COVID–19.19

We are also temporarily changing the 

consecutive 4-month close proximity of 

time rule to a consecutive 12-month rule 

because the manner of care provided 

changed throughout the COVID–19 

national public health emergency. To be 

responsive to this change in the manner 

of care, we instructed our adjudicators 

to temporarily hold claims that would 

benefit from the flexibilities in this rule, 

so we will process claims affected by 

this rule on or after the effective date of 

this rule. Due to safety concerns, many 

healthcare providers shifted to 

emphasizing or exclusively scheduling 

telehealth or virtual visits. The 

optimization of telehealth is consistent 

with the guidance issued by many 

specialist organizations, such as 

NASS,20 the American College of 

Surgeons (ACS),21 the American 

Academy of Orthopedic Surgeons 

(AAOS),22 and the American College of 

Rheumatology (ACR).23

Although many individuals access 

telehealth visits successfully, the 

clinical signs and findings required by 

some of the listings may not be present 

in the telehealth record due to the 

limitations of telemedicine. While 

testing by the patient is possible through 

telehealth, there are limits in 

provocative testing (that is, testing that 

manipulates the areas where you have 

pain in order to reproduce the pain), 

discrete palpation (that is, a technique 

that uses targeted pressure to identify 

and quantify the abnormalities of the 

musculoskeletal system, such as 

warmth, swelling, pain, tenderness, and 

trigger points), and strength or stability 

testing.24 During the beginning of the 

COVID–19 pandemic, orthopedists 

created guidelines for virtual 

examinations of patients through 

telemedicine, and found that while the 

patient could perform many tests, there 

are inherent limitations to testing in this 

manner. For example, the authors 

recommend using another person to 

hold the camera during gait examination 

to get a better view of the patient’s gait 

mechanics, which is not always 

possible.25 Further, the VHA has found 

that although patients appreciate 

telehealth, many are unable to complete 

exams that require precise 

measurements, such as range of motion 

or reflexes.26

Consequently, disability claimants 

with musculoskeletal disorders of the 

severity required by the listings who 

would have been able to provide 

evidence that their musculoskeletal 

disorder met the consecutive 4-month 

close proximity of time requirement 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 38923 

27 86 FR 7229 (2021). 

28 42 U.S.C. 223(d)(1) and 1614(a)(3)(A), 20 CFR 

404.1505, 404.1572, 416.905, 416.972. 29See Bailey, Michelle Stegman and Jeffrey 

Hemmeter. Characteristics of Noninstitutionalized 

DI and SSI Program Participants, 2013 Update, 

Research and Statistics Note No. 2015–02. 

Washington, DC: Office of Research, Evaluation, 

and Statistics, Office of Retirement and Disability 

Policy, Social Security Administration, September 

2015, https://www.ssa.gov/policy/docs/rsnotes/ 

rsn2015-02.html, which shows that 51 percent of DI 

beneficiaries and 63 percent of SSI beneficiaries 

have household incomes below the poverty level, 

excluding their DI and SSI payments. The study 

also found that DI payments represented an 85 

percent reduction in the poverty gap and SSI 

payments represented a 68 percent reduction in the 

poverty gap for beneficiaries. See also [SSA] Social 

Security Administration, National Beneficiary 

Survey: Disability Statistics, 2015, SSA Publication 

No. 13–11826. Washington, DC: SSA. https://

www.ssa.gov/policy/docs/statcomps/nbs/2015/nbsstatistics-2015.pdf, which shows that over 45 

percent of disability beneficiaries have a household 

income lower than the poverty level. Additionally, 

see Mathews v. Eldridge, 424 U.S. 319, 342 (1976) 

(‘‘in view of . . . the typically modest resources of 

the family unit of the physically disabled worker, 

the hardship imposed upon the erroneously 

terminated disability recipient may be 

significant.’’); White v. Mathews, 559 F.2d 852 (2d 

Cir. 1977) (‘‘The disability insurance program is 

designed to alleviate the immediate and often 

severe hardships that result from a wage-earner’s 

disability. In that context, delays . . . detract 

seriously from the effectiveness of the program.’’). 30 42 U.S.C. 1611(a), 20 CFR 416.202. 

before the COVID–19 national public 

health emergency may now have more 

difficulty producing evidence to meet 

the standard. It is possible that, in light 

of the pandemic and the temporary 

changes in healthcare described above, 

claimants have scheduled fewer clinical 

visits or have been afforded fewer 

appointments that would allow them to 

provide the necessary evidence. Because 

such a claimant would lack the 

necessary documentation to meet the 

listing in the absence of this temporary 

change, we would not find the claimant 

disabled under the listings, although we 

could make a finding of disability at 

later steps of our sequential evaluation 

process in appropriate cases. 

In recognition of the economic and 

social services crisis caused by the 

COVID–19 national public health 

emergency, the President published 

Executive Order 14002 Economic Relief 

Related to the COVID–19 Pandemic,27

which directed Federal agencies to 

consider actions to improve access to 

and reduce unnecessary barriers to 

Federally-funded programs. We are 

issuing this rule in furtherance of the 

goals in the Executive Order. 

This rule will remain in effect until 6 

months after the effective date of a 

determination by the Secretary of Health 

and Human Services under section 319 

of the Public Health Service Act, 42 

U.S.C. 247d, that the national public 

health emergency resulting from the 

COVID–19 pandemic no longer exists, 

which will afford claimants the 

opportunity to attend scheduled 

appointments that may have been 

delayed during the national public 

health emergency, allow us time to 

adjudicate claims affected by the rule, 

and allow sufficient time to notify the 

adjudicative community of the change. 

We will continue to apply the 

consecutive 12-month period until 6 

months after the Secretary of HHS 

determines that the COVID–19 national 

public health emergency no longer 

exists to allow time for health care 

access to normalize back to prepandemic period levels and to account 

for potential backlogs in medical care 

that may continue to interfere with 

access to the relevant care and 

documentation needed to satisfy the 

listing criteria. Additionally, the 

expiration date included in this 

temporary final rule will provide us 

with the time necessary to publish a 

document in the Federal Register to 

advise the public of the date on which 

this rule will no longer be effective, 

communicate the change to adjudicators 

and the public, update our materials 

that reference the consecutive 12-month 

period, and process claims where the 

medical care was received prior to the 

end of the COVID–19 national public 

health emergency. 

Summary of the Changes 

This rule adds a new section 1.00C7a 

and 101.00C7a to the musculoskeletal 

disorders listings. The rule also 

redesignates current sections 1.00C7a 

and 1.00C7b as 1.00C7b and 1.00C7c, 

respectively, and 101.00C7a and 

101.00C7b as 101.00C7b and 101.00C7c, 

respectively. New sections 1.00C7a and 

101.00C7a define the term ‘‘pandemic 

period’’ to mean ‘‘the period beginning 

on April 2, 2021 and ending on the date 

that is 6 months after the effective date 

of a determination by the Secretary of 

Health and Human Services under 

section 319 of the Public Health Service 

Act, 42 U.S.C. 247d, that the national 

public health emergency resulting from 

the COVID–19 pandemic no longer 

exists.’’ Redesignated and revised 

sections 1.00C7c and 101.00C7c provide 

that, for purposes of listings 1.15, 1.16, 

1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 

101.15, 101.16, 101.17, 101.18, 101.20C, 

101.20D, 101.22, and 101.23, the phrase 

‘‘within a close proximity of time’’ 

means that all of the relevant criteria 

must appear in the medical record 

within a consecutive 4-month period, 

except for claims determined or decided 

during the pandemic period. For claims 

that we determine or decide during the 

pandemic period, we provide that all of 

the relevant criteria must appear in the 

medical record within a consecutive 12- 

month period. 

Regulatory Procedures 

Justification for Issuing a Rule Without 

Notice and Comment 

We follow the Administrative 

Procedure Act’s (APA) rulemaking 

procedures specified in 5 U.S.C. 553 

when we develop regulations. 

Generally, the APA requires that an 

agency provide prior notice and 

opportunity for public comment before 

issuing a final rule. The APA provides 

exceptions to its notice and public 

comment procedures when an agency 

finds there is good cause for dispensing 

with such procedures because they are 

impracticable, unnecessary, or contrary 

to the public interest (5 U.S.C. 

553(b)(B)). 

We find that there is good cause 

under 5 U.S.C. 553(b)(B) to issue this 

rule without prior public comment 

because prior public comment is 

impracticable and contrary to public 

interest. 

We find that public comment is 

impracticable because the delay 

associated with the public comment 

process would impede our ability to 

provide this flexibility to claimants 

affected by the changed nature of 

healthcare. The delay associated with 

the public comment process would also 

affect our ability to operate efficiently 

and provide appropriate public service 

because it would require us to hold or 

readjudicate cases affected by this 

change, possibly delaying benefits to 

disabled individuals. People eligible for 

disability benefits are, by definition, not 

able to engage in substantial gainful 

activity.28 Therefore, many applicants 

may experience immediate and severe 

financial hardship,29 placing them at 

risk of losing their homes, means of 

transportation, access to health care, 

and other important resources, in 

addition to experiencing increased 

stress as they await the outcome of their 

case and their award of benefits. This is 

particularly true for the population that 

is eligible for Supplemental Security 

Income (SSI) benefits, which has, by 

definition, severely limited income and 

financial resources.30 An unnecessary 

delay during this vulnerable period, 

particularly in the context of the 

economic and other hardships caused 

by the pandemic, would cause 

significant harm and detract 

substantially from the effectiveness of 

the disability program in providing 

meaningful economic relief for disabled 


khammond on DSKJM1Z7X2PROD with RULES
38924 Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 

31See Deshpande, Manasi, Tal Gross, and Yalun 

Su. 2021. ‘‘Disability and Distress: The Effect of 

Disability Programs on Financial Outcomes.’’ 

American Economic Journal: Applied Economics, 

13 (2): 151–78, https://pubs.aeaweb.org/doi/ 

pdfplus/10.1257/app.20190709, which found that 

rates of bankruptcy, foreclosure, and eviction 

among disability applicants are higher than in the 

general population; rates of these adverse financial 

events increase leading up to the application date 

and peak around the application date; and rates of 

these adverse financial events decline for both 

allowed and denied applicants after the initial 

disability decision, but they decline more for the 

allowed. This suggests that delaying the disability 

decision can cause long-term or permanent 

financial harm at a time when applicants are most 

vulnerable. In fact, the researchers concluded that 

awarding disability benefits sooner could avert a 

substantial amount of financial distress among 

applicants. See also Gross, T., & Trenkamp, B. 

(2015). Risk of Bankruptcy among Applicants to 

Disability Insurance. Journal of health care for the 

poor and underserved, 26(4), 1149–1156. https://

doi.org/10.1353/hpu.2015.0118, which found that 

SSDI benefits decrease the risk of bankruptcy to a 

statistically significant degree among all age groups. 

individuals. 31 Even if they receive the 

same benefits at a later date, these 

individuals may suffer from long term 

or permanent consequences of the lost 

income during the period of delay. 

We also find that delaying immediate 

implementation of this temporary final 

rule to obtain public comment would be 

contrary to the public interest because it 

would prolong the time it would take to 

adjudicate claims and provide benefits 

to claimants. This rule is intended to 

provide us with flexibility to determine 

that an individual’s musculoskeletal 

disorder meets the requirements of the 

listings, considering the emerging 

evidence regarding changes in 

healthcare delivery that have resulted 

from the COVID–19 national public 

health emergency. It also provides for 

claimants to receive needed benefits at 

a time when they are financially and 

medically vulnerable due to onset of 

disability and the COVID–19 pandemic, 

based on the evidence that is likely to 

be in their file during the pandemic. 

Providing the opportunity for public 

comment before we implement this rule 

would prevent us from acting within a 

meaningful timeframe to account for 

current access-to-care limitations that 

prevent claimants who may meet the 

listing from establishing requisite 

evidence to show it, because the 

pandemic-related barriers to access of 

care that this rule attempts to alleviate 

would continue to occur. Providing 

opportunity for prior public comment 

could also result in the rule taking effect 

only after the proposed expiration date, 

when access to care has returned to prepandemic norms, which would negate 

the need for the rule. Consequently, if 

we offered the opportunity for public 

comment prior to immediate temporary 

implementation, we would be unable to 

offer relief to affected claimants in a 

timely manner, and we would be 

required to delay our adjudications of 

certain disability claims impacted by 

this temporary final rule and be unable 

to pay needed benefits to affected 

individuals in a timely manner. The 

delay associated with a public comment 

period would also be contrary to the 

public interest because it would reduce 

the effectiveness of the rule and the 

more flexible timeframe we are 

establishing. Prior public comment 

would therefore defeat the purpose of 

this rule, which is to provide effective 

and timely relief and ensure economic 

security to individuals affected by the 

changed nature of healthcare delivery. 

In addition, for the reasons cited 

above, we find good cause for 

dispensing with the 30-day delay in the 

date of this rule provided for in 5 U.S.C. 

553(d)(3). So, we are making this 

temporary final rule effective upon 

publication. 

We are making this temporary final 

rule effective on the date of publication. 

However, we invite public comment on 

all aspects of the temporary final rule as 

they may apply after the effective date, 

including: The definition of the 

‘‘pandemic period’’ during which we 

will apply expanded flexibility in the 

‘‘close proximity of time’’ standard; the 

appropriate standard for ‘‘close 

proximity of time’’ to account for 

barriers to access to care; information 

about barriers to access to care and 

disproportionate burdens faced by any 

subset of the population; and the 

expiration date of this rule. Please share 

any supporting information that you 

might have. We will consider any 

substantive comments we receive 

within 60 days of the publication of this 

temporary final rule and will issue a 

revised final rule if necessary after we 

consider the public comments. We will 

also study the application of this 

temporary final rule in our program. 

Executive Order 12866, as 

Supplemented by Executive Order 

13563 

We consulted with the Office of 

Management and Budget (OMB) and 

determined that this temporary final 

rule meets the criteria for a significant 

regulatory action under Executive Order 

12866 and is subject to OMB review. 

Executive Order 13132 (Federalism) 

We analyzed this rule under the 

principles and criteria established by 

Executive Order 13132 and determined 

that the rule will not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism assessment. 

We also determined that this rule will 

not preempt any State law or State 

regulation or affect the States’ abilities 

to discharge traditional State 

governmental functions. 

Regulatory Flexibility Act 

We certify that this rule will not have 

a significant economic impact on a 

substantial number of small entities, 

because it affects only individuals. 

Therefore, a Regulatory Flexibility Act, 

as amended, does not require us to 

prepare a regulatory flexibility analysis. 

Anticipated Costs to Our Programs: 

Our Office of the Chief Actuary 

(OCACT) was not able to provide a 

specific cost estimate for this temporary 

final rule, as it does not have any 

reliable information on which to base 

program cost estimates. Additionally, 

this temporary final rule is to be in 

effect until 6 months after the Secretary 

of Health and Human Services 

determines the COVID–19 national 

public health emergency no longer 

exists, and it is unknown how long it 

will be until such declaration is made. 

Anticipated Administrative Costs to 

SSA: Our Office of Budget, Finance, and 

Management notes the unknown 

magnitude on allowance rates and 

ambiguity in the effective time period 

for this temporary final rule, but expects 

this change will have a minimal 

administrative effect on the agency. 

Paperwork Reduction Act 

This rule does not create any new or 

affect any existing collections and, 

therefore, does not require Office of 

Management and Budget approval 

under the Paperwork Reduction Act. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social Security— 

Disability Insurance; 96.002, Social 

Security—Retirement Insurance; 96.004, 

Social Security—Survivors Insurance; and 

96.006, Supplemental Security Income) 

List of Subjects 

20 CFR Part 404 

Administrative practice and 

procedure; Blind, Disability benefits; 

Old-age, survivors, and disability 

insurance; Reporting and recordkeeping 

requirements; Social Security. 

20 CFR Part 416 

Administrative practice and 

procedure; Aged, Blind, Disability cash 

payments; Public assistance programs; 

Reporting and recordkeeping 

requirements; Supplemental Security 

Income (SSI). 

The Acting Commissioner of Social 

Security, Kilolo Kijakazi, having 

reviewed and approved this document, 

is delegating the authority to 

electronically sign this document to 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations 38925 

Faye I. Lipsky, who is the primary 

Federal Register Liaison for the Social 

Security Administration, for purposes of 

publication in the Federal Register. 

Faye I. Lipsky, 

Federal Register Liaison, Office of Legislation 

and Congressional Affairs, Social Security 

Administration. 

For the reasons stated in the 

preamble, we are amending subpart P of 

part 404 of chapter III of title 20 of the 

Code of Federal Regulations as set forth 

below: 

PART 404—FEDERAL OLD-AGE, 

SURVIVORS AND DISABILITY 

INSURANCE (1950– ) 

Subpart P—Determining Disability and 

Blindness 

■ 1. The authority citation for subpart P 

of part 404 continues to read as follows: 

Authority: Secs. 202, 205(a)–(b) and (d)– 

(h), 216(i), 221(a) and (h)–(j), 222(c), 223, 

225, and 702(a)(5) of the Social Security Act 

(42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 

421(a) and (h)–(j), 422(c), 423, 425, and 

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 

Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 

118 Stat. 509 (42 U.S.C. 902 note). 

■ 2. In appendix 1 to subpart P of part 

404: 

■ a. In part A, amend section 1.00C7 by 

redesignating paragraphs a. and b. as b. 

and c., by adding a new paragraph a., 

and by revising newly redesignated 

paragraph c.; and 

■ b. In part B, amend section 101.00C7 

by redesignating paragraphs a. and b. as 

b. and c., by adding a new paragraph a., 

and by revising newly redesignated 

paragraph c. 

The additions and revisions read as 

follows: 

Appendix 1 to Subpart P of Part 404— 

Listing of Impairments 

* * * * * 

Part A 

* * * * * 

1.00 Musculoskeletal Disorders. 

* * * * * 

C. * * * 

7. * * * 

a. The term pandemic period as used in 

1.00C7c means the period beginning on April 

2, 2021, and ending on the date that is 6 

months after the effective date of a 

determination by the Secretary of Health and 

Human Services under section 319 of the 

Public Health Service Act, 42 U.S.C. 247d, 

that the national public health emergency 

resulting from the COVID–19 pandemic no 

longer exists. 

* * * * * 

c. For 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 

1.22, and 1.23, all of the required criteria 

must be present simultaneously, or within a 

close proximity of time, to satisfy the level 

of severity needed to meet the listing. The 

phrase ‘‘within a close proximity of time’’ 

means that all of the relevant criteria must 

appear in the medical record within a 

consecutive 4-month period, except for 

claims determined or decided during the 

pandemic period. For claims determined or 

decided during the pandemic period, all of 

the relevant criteria must appear in the 

medical record within a consecutive 12- 

month period. When the criterion is imaging, 

we mean that we could reasonably expect the 

findings on imaging to have been present at 

the date of impairment or date of onset. For 

listings that use the word ‘‘and’’ to link the 

elements of the required criteria, the medical 

record must establish the simultaneous 

presence, or presence within a close 

proximity of time, of all the required medical 

criteria. Once this level of severity is 

established, the medical record must also 

show that this level of severity has 

continued, or is expected to continue, for a 

continuous period of at least 12 months. 

* * * * * 

Part B 

* * * * * 

101.00 Musculoskeletal Disorders. 

* * * * * 

C. * * * 

7. * * * 

a. The term pandemic period as used in 

101.00C7c means the period beginning on 

April 2, 2021, and ending on the date that is 

6 months after the effective date of a 

determination by the Secretary of Health and 

Human Services under section 319 of the 

Public Health Service Act, 42 U.S.C. 247d, 

that the national public health emergency 

resulting from the COVID–19 pandemic no 

longer exists. 

* * * * * 

c. For 101.15, 101.16, 101.17, 101.18, 

101.20C, 101.20D, 101.22, and 101.23, all of 

the required criteria must be present 

simultaneously, or within a close proximity 

of time, to satisfy the level of severity needed 

to meet the listing. The phrase ‘‘within a 

close proximity of time’’ means that all of the 

relevant criteria must appear in the medical 

record within a consecutive 4-month period, 

except for claims determined or decided 

during the pandemic period. For claims 

determined or decided during the pandemic 

period, all of the relevant criteria must 

appear in the medical record within a 

consecutive 12-month period. When the 

criterion is imaging, we mean that we could 

reasonably expect the findings on imaging to 

have been present at the date of impairment 

or date of onset. For listings that use the 

word ‘‘and’’ to link the elements of the 

required criteria, the medical record must 

establish the simultaneous presence, or 

presence within a close proximity of time, of 

all the required medical criteria. Once this 

level of severity is established, the medical 

record must also show that this level of 

severity has continued, or is expected to 

continue, for a continuous period of at least 

12 months. 

* * * * * 

[FR Doc. 2021–15423 Filed 7–22–21; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number: USCG–2021–0381] 

Safety Zone; Recurring Events in 

Captain of the Port Duluth Zone— 

Pointe to La Pointe Swim, Bayfield, WI 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the safety zone for the Pointe to La 

Pointe Swim event in Bayfield, WI, from 

7 a.m. through 11 a.m. on August 7, 

2021. This action is necessary to protect 

participants and spectators during the 

event. During the enforcement period, 

entry into, transiting, or anchoring 

within the safety zone is prohibited 

unless authorized by the Captain of the 

Port Duluth or a designated on-scene 

representative. 

DATES: The regulations in 33 CFR 

165.943(a) will be enforced for the 

location listed in Table 1 to § 165.943, 

entry (9), from 7 a.m. through 11 a.m. 

on August 7, 2021. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this notice of 

enforcement, call or email MST2 Jeremy 

Davis, telephone (218)725–3818, email 

DuluthWWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce special local 

regulations in 33 CFR 165.943(a) for the 

location listed in Table 1 to § 165.943, 

entry (9), for the annual Pointe to La 

Pointe Swim event from 7 a.m. through 

11 a.m. on August 7, 2021 on all waters 

between Bayfield, WI, and Madeline 

Island, WI, within an imaginary line 

created by the following coordinates: 

46°48′27.55′′ N, 090°48′56°.86′′ W, 

moving southeast to 46°48′21.2′′ N, 

090°48′59.9′′ W, moving south to 

46°47′19.91′′ N, 090°49′46.18′′ W, 

moving east 46′47′21.18′′ N, 

090°49′02.39′′ W, then moving north to 

46°48′21.20′′ N, 090°48′56.86′′ W and 

finally running back to the starting 

point. Pursuant to 33 CFR 165.33 and 

165.943(a), entry into, transiting, or 

anchoring within the safety zone is 

prohibited unless authorized by the 


khammond on DSKJM1Z7X2PROD with RULES